New Proposal Would Let Companies Further Screw You Over With Terms of Service (vice.com) 111
An anonymous reader quotes a report from Vice: A collection of unelected lawyers [from the American Law Institute] this week is quietly pushing a new proposal that could dramatically erode your legal rights, leaving you at the mercy of giant corporations eager to protect themselves from accountability. Occasionally, this coalition (including all the members of the Supreme Court) meets to create "restatements," effectively an abridged synopsis or reference guide for the latest established precedents and legal trends. While restatements themselves aren't legally binding, they're very influential and often help shape judicial opinions. Seven years ago, the ALI began pondering a new restatement governing consumer contracts -- and your legal rights as a consumer. Today, the ALI meets to vote on the approval of this latest restatement. But a long line of legal experts have been blasting the group's updated language governing consumer contracts.
Specifically, they noted that the updated draft language proclaims that consumers would not need to read a contract to be bound by its terms. The draft states as long as consumers received "reasonable notice" and had "reasonable opportunity to review" it, the contract would be legally binding. Under this model, consumers wouldn't need to even understand the contract to be bound by it, a problem given data suggests such agreements are often incomprehensible to the average user. The language was problematic enough to result in a letter this week by 23 state attorneys general, criticizing the ALI's proposal as a major threat to consumer rights. "To call boilerplate language that consumers never read (or if they did read, could not understand) a 'contract' simply has the effect of locking consumers in to terms that are likely to be stacked against them," John Bergmayer, Senior Counsel at consumer group Public Knowledge, said in an email.
Traditionally, "contracts" are legal documents that are mutually agreed to after negotiation between two parties. Functionally, this isn't how Terms of Service, which few people read and few people can be expected to read and understand, work in the real world. "For some reason, everything you learn about contracts in the first year of law school gets tossed out the window when it comes to large companies unilaterally setting terms for consumers," Bergmayer added.
Specifically, they noted that the updated draft language proclaims that consumers would not need to read a contract to be bound by its terms. The draft states as long as consumers received "reasonable notice" and had "reasonable opportunity to review" it, the contract would be legally binding. Under this model, consumers wouldn't need to even understand the contract to be bound by it, a problem given data suggests such agreements are often incomprehensible to the average user. The language was problematic enough to result in a letter this week by 23 state attorneys general, criticizing the ALI's proposal as a major threat to consumer rights. "To call boilerplate language that consumers never read (or if they did read, could not understand) a 'contract' simply has the effect of locking consumers in to terms that are likely to be stacked against them," John Bergmayer, Senior Counsel at consumer group Public Knowledge, said in an email.
Traditionally, "contracts" are legal documents that are mutually agreed to after negotiation between two parties. Functionally, this isn't how Terms of Service, which few people read and few people can be expected to read and understand, work in the real world. "For some reason, everything you learn about contracts in the first year of law school gets tossed out the window when it comes to large companies unilaterally setting terms for consumers," Bergmayer added.
it's time to get out the guillotines (Score:5, Insightful)
maybe if these scum started fearing for their lives they'd think twice before fucking over all of society
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Fortunately the contract they agreed to permits use of cheesegraters.
We don't need anything so elaborate (Score:3)
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Both Bernie Sanders and Elizabeth Warren are taking in corporate and PAC money for their campaigns.
I realize you are a troll but really you should try harder next time.
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I would have agreed with you about Bernie at one point, but when he went full in supporting Hillary last election, he lost all credibility.
Warren? Seriously? Hillary 2.0. Thanks but no thanks. She may be the worst out of the entire pack.
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maybe if these scum started fearing for their lives they'd think twice before fucking over all of society
We're just talking about the summary here, right?
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Unelected lawyers (Score:2)
Doesn't this describe every policy-focused political group? You could say the same thing about Greenpeace.
Greenpeace doesn't get to meet with SCOTUS (Score:2)
Re:Unelected lawyers (Score:5, Informative)
Doesn't this describe every policy-focused political group? You could say the same thing about Greenpeace.
Yes. Exactly.
This is a membership group that publishes a book. That's what this is. A book. Not a law. Not a precedent. Not a case. Not a bill. A book. A book that isn't going to show up any time soon, since today is the day of the ALI membership vote, and before slashdot posted the story they had already decided to postpone it until at least next year. Meaning it will get fixed, because...
Unlike Greenpeace, they're not intending to advocate for anything, their intent is only to publish summaries for lawyers and judges outside of a specialty. It's like Cliff Notes, but for professionals. So it is not really a surprise that they didn't approve it, after that Attorney Generals' letter. When 23 State AGs are opposed to something that isn't even supposed to be controversial, you can expect it to be postponed and fixed.
This is the ALI's process working. They assign a very small team to write these Restatements, it isn't that surprising to have one go off the rails once in awhile, because individuals might have a wide range of understanding, and you might accidentally choose a team of 3 people that create an echo chamber.
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Clearly you've never used FreeNAS...
These are called adhesion contracts (Score:2)
Such a contract is drawn up by one party and is binding on the other party without recourse or argument. Examples are car rental contracts, the shrink-wrap EULA, and those airline "contracts of carriage" - the ones you are legally supposed to read but if you ask to see one you will be labeled a terrorist and thrown off your flight.
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I could actually see this working (Score:2)
I could actually see this working. *IF* there were a requirement that any terms in such a contract had to be limited to terms a "reasonable" customer would expect and agree to. So boilerplate like "customer agrees to pay service the agreed amount once a month on the first of the month" or "service shall not sell or share to third parties without customer's express written permission, private info customer shared w
large companies unilaterally setting terms? (Score:1)
Chaaa! When you elect their representatives this is usually what happens. Somebody gonna tell me this wasn't foreseen?
It's not "some" reason. (Score:3)
"For some reason, everything you learn about contracts in the first year of law school gets tossed out the window when it comes to large companies unilaterally setting terms for consumers..."
It's not "some" reason. The reason is obvious, and I don't even know why we're talking about this. Consumers won't change. They never read EULAs today. Not sure why the hell we feel they'll read them with an additional screw-U-more clause. 99.999% of consumers won't ever find themselves in a legal battle due to this anyway, so they'll further dismiss this concern under the It'll-never-happen-to-me mindset.
Corporations maximize their leverage in contracts because of this, so let's stop playing dumb. The last person to read a fucking EULA was the lawyer who wrote the damn thing.
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I want my one phone call. Don't say no.
OK, here's your phone call. Now what? Like you or the other 99.999% of society can afford to do jack shit after that. Good luck against the army of corporate lawyers. Even if you win, they'll simply fight the ruling over and over again. Their resources are endless. Yours are not.
Your phone call is as worthless today as it will be in the future.
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Pass a law requiring EULAs to be read out loud at the standard 2.5 words per second rate before the user is allowed to agree with them. Signing up to PayPal would take months, and if you got an iPhone for Christmas it would be Easter before you could make a call.
Companies would quickly condense their EULAs down to a manageable size and consumers would pay more attention to them.
Wait - this is how the law should be interpreted (Score:2)
Stop blaming judges for act
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The law might be terrible but that doesn't mean that judges get to choose how to interpret it. Stop blaming judges for actually reading bad laws and interpreting them literally. That's their job. Don't like the law change it.
Bullshit.
Was it Plessy vs. Ferguson (the Supreme Court case establishing "separate but equal") or Brown vs. Board of Education (the case invalidating that case law) that had judges who "read bad laws and interpreted them literally"?
The entire point of the existence of the court system is to have judges and juries providing a balance against bad laws.
It is merely a restatement of existing law (Score:1)
Not to mention... (Score:1)
Re: It is merely a restatement of existing law (Score:1)
The fact is, the 20% are forced to accept what the 80% will tolerate. Tyranny of the masses. Oh sure, you donâ(TM)
Re: It is merely a restatement of existing law (Score:1)
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One of those provisions should be that only single punctuation marks are allowed.
EULA: No export to ...Elbonia... (Score:1)
Anyone remember which company did this just to have fun?
To what limit (Score:2)
How outrageous of terms can a company hide in the fine print that virtually no consumers read. Can it get full access and rights to a users data? Can it encrypt the disk unless a monthly unlock fee is paid. First born children and kidneys???
EULAs need to have a very short summary section in language that most people can understand.
Summarily Wrongness... (Score:3)
> A collection of unelected lawyers
If your summary is wrong by the third word, it doesn't inspire a lot of confidence in the rest of it;
> Council members are elected [ali.org] from the Institute membership for terms of five years. The Council ordinarily meets in January, May, and October.
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And what contract specifies this?
Turn-about is fair play (Score:2)
I think this is absolutely fine. Of course, when I purchase a product, I will also lay a piece of paper on the counter. They don't need to read it or accept it, but it is binding, and they will be obligated to do whatever I wrote in that "contract". Let's say...a product testing fee of $1 million?
Seriously, guidance like this completely undermines the meaning of the word "contract", which is an intentional, knowing acceptance of agreed terms.
The problem of contractual acceptance - and the face that many peo
There's No Point in Acting Surprised about It (Score:1)
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An unintended consequence (Score:3)
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"A preschooler could sign a contract."
They already can. The only problem is it wouldn't be enforceable against the child.
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They could try that. You could also say it wasn't fair and have a judge try to determine the final outcome.
Geese and gander (Score:2)
Fine, then I'll make a contract "reasonably available" stating that any company that used my data without my express, written consent agrees to pay me $1000 per day I use their service and that any verified data breeches trigger a $15,000,000 payout.
To paraphrase Douglas Adams (Score:2)
“But the contract was on display”
“On display? I eventually had to go down to the cellar to find it.”
“That’s the display department.”
“With a flashlight.”
“Ah, well, the lights had probably gone.”
“So had the stairs.”
“But look, you found the contract, didn’t you?”
“Yes,” said Arthur, “yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the
Yes but (IAAL) (Score:2)
As for the ALI, this process is nothing unheard of. Subby paints this as some sort of conspiracy. In fact there are dozens of restatements (https://www.ali
Will it hold up in court? (Score:2)
I hereby agree... (Score:2)
Holding people to account for not understanding the legalese they're conned into signing by salespeople is the American way of life. Anyone who opposes this foundational concept in American consumerism is a traitor & should be prosecuted by Judge Judy on Fox News.
I wonder if the summary sucks (Score:2, Interesting)
I wonder if TFS sucks, as Slashdot summaries usually do, because this one utterly fails indicate what the problem is.
"Even if they didn't read them". The author thinks this is new? The idea of *reading* a legal document before you sign it isn't exactly new.
I doubt anyone is suggesting that consumers should be forced to actually read the terms of service before they rent a movie or whatever. Maybe a few idiots might think society can function without any terms, no written agreements, but certainly no state
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Contract law is washed out by EULA fatigue. It's one thing that we have to agree to terms at the point we purchase something, but it's quite different when we have to keep re-agreeing every time a patch is applied. To be thorough you'd have to copy-paste the EULA text into text documents and diff them to see what wording is changing. When patches are rolling out at least once a week this very quickly becomes exhausting. At some point you cross the line to a point that you can't physically read all the EULAs
Good analysis, points to some solutions (Score:2)
Changing EULAs with software patches is a good example of something that could be easily addressed in law, likely without too much unintended consequences. One might allow the terms to become strictly more permissive - such as switching / adding GPL to a previously proprietary license.
> Never rely on closed-source programming languages, the rug can be pulled at any time.
Never benefitted dependent on closed source, the rug can be pulled out at any time. Not just programming languages. Anything that hold
Re:I wonder if the summary sucks (Score:5, Informative)
Yeah, not only does the story suck, and the summary sucks, but by the time Slashdot posted this the ALI had already met, and had already shelved the proposal until at least next year.
EULAs were always contracts. But none of the terms have been expressly agreed to, so they only serve as notice of what the company intends to do, they don't place any obligations on the buyer or waive any rights.
They grant only what they grant (Score:3)
> EULAs were always contracts. But none of the terms have been expressly agreed to, so they only serve as notice of what the company intends to do, they don't place any obligations on the buyer or waive any rights.
EULA stands for end-user LICENSE agreement.
Without it, I have generally have no license, no rights to do anything at all with your work. It's not about "they don't waive any rights", the grant me the right to use your work - only the rights that they grant, under the terms that you put in ther
The law is, you can't have it (Score:2)
> Why is there a need for EULAs when the terms are already in the law? You can't copy something without permission
The law is, I can't take your stuff. The license agreement allows you to do what would otherwise be unlawful, per the agreed terms.
If you write a song, I can't put it on my album without your permission. Your permission is the license agreement, which may say that I can sample up to 45 seconds of your song, it may say I can use as much as I want as long as I give you writing credit, whatever.
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Without the EULA, you are simply bound by copyright law. Use it as you see fit, but do not distribute copies, and if you sell the original media, either hand off or destroy any backup copies you made.
GPL is not a contract. Promissory estoppel (Score:2)
Contract law isn't the only law.
For example there is law on theft. Consider this:
Suppose I gift you $20 today. Maybe I mail it to you anonymously, never speaking to you. A year from now can I come take $20 from you? No, that would be theft. Gifts are generally non-revokable.
I can't revoke your GPL license because I gave you a non-revokable license, it's non-revokable by its own terms, except in certain conditions where the recipient is violating it.
Even if the GPL wasn't non-revokable by it's terms, there
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Gifts that lack documentation are revocable.
That's the whole reason that when somebody "gives" somebody something of high value, like a car or a house or something, they actually sell it to the person for $1. Because now it cannot be taken back!
If you didn't pay, it isn't really "yours." You're in possession of it, and may use it, but it doesn't actually belong to you.
Citation needed (Score:2)
Citation needed.
You may be thinking of enforceability under the UCC, in which case you're right-ish - you just have it backwards. *Sales* of goods over $500 need to be in writing to be enforceable in court. Gifts lay outside the UCC and therefore are not subject to the rule (see UC Article 2).
In some states, such as Texas, legal title to *automobiles* follows recorded title - a purported transfer of title to an automobile (gift or sale) is not of legal affect until that precise document is executed. A bil
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Documentation was an incorrect choice of word.
Other than that, no, no citation is needed, you just don't have an understanding of the details, so look it up if you're interested. But don't argue before then.
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You wouldn't look silly if you said "oh, that's interesting".
You do look silly when you assert those who cite the law are wrong, the attorneys are wrong, the judge is wrong, and you refuse to cite anything.
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A contract also has to include a meeting of minds, and an intent to form legal relations. Also it has be legal e.g. you can't have a legally enforceable contract to murder someone
The meeting of minds is the relevant one here, both parties need to know what they are getting into. What you didn't go to my web site and somewhere in those terms it said you had to pay me 1 cent per blade of grass you cut with the lawn mower? It was clearly on my Facebook page, shame one you.
Before you say that doesn't happen
That's a poor translation of the latin (Score:2)
The phrase "meeting of the minds" is a poor translation of the latin phrase. The validity of a contract depends on your actions, not your thoughts. "I didn't understand" does not involve a contract. In fact, a large percentage of contract dispute occur when people have differing understanding of what the contract is / means. In such cases, the court decides what it means - it does not invalidate the contract.
"Meeting of the minds" is a poor translation because it's not about mental state at all. It's abou
Typo: Invalidate, not involve (Score:2)
That should say:
"I didn't understand" does not invalidate a contract.